Why Richard Epstein is a genius

Separating the heat from the light, Richard Epstein praises his University of Chicago colleague and Obama appointee Cass Sunstein before intellectually burying him.

"Sunstein is by any fair account the most prominent, versatile and influential left-of-center legal academic in the U.S. His nomination has been supported, sensibly enough, by The Wall Street Journal, which also sees him correctly as one of the more conservative players in the Obama administration. But apparently, its wise counsel did not slow down key Republican senators who held up his nomination on at least three separate occasions, in part because of their worries that his view on hunting and animal care make him an extremist on animal rights.

Regrettably, they seem more influenced by the caricature of his position on the American Conservative Union Web site and Glenn Beck's brutal hosing this past July that also denounced Sunstein for his passionate support of Franklin D. Roosevelt's Second Bill of Rights. This sad tale has been well recounted by David Weigel in the Washington Independent. Therefore, it is perhaps no surprise that Sunstein's was confirmed was by the embarrassingly narrow vote of 57-to-40.

These unseemly outbursts of ignorant incivility have ripped at our country's frayed political fabric. One oft-neglected cost of these hysterical tactics is that they discredit ordinary academics, like myself, who strongly disagree with the views that Sunstein has so consistently and elegantly defended. Quite simply, it is to be drowned out by the childish arguments of my supposed allies. The correct political stance is to give President Obama wide latitude in choosing his subordinates, and then to dispute them on the key substantive issues.not"

But of course then there are the problems with Sunstein's long-nourished fantasy, a Second Bill of Rights, rounding out FDR's expansive use of government to drown out the fear from wants far and wide.

... it is Roosevelt's treacherous transformation of human aspirations into enforceable legal rights. There are two enormous gaps in that chain of reasoning. First, it does not specify the persons who must bear the correlative duties to this expanded set of rights. Nor can we duck this problem by imposing the obligations on the state or government, which consists, of course, of all those original right bearers in a different capacity.

So in the end we can't maintain the universality of Roosevelt's claim: We have to distinguish between those of us who count as "the people" and everyone else, those who don't really count at all. If we all have the rights to decent jobs, then workers have the right to form unions, regardless of the consequences to employers, shareholders and the public at large. If farmers have the right to a decent living, the rest of us have to suffer Roosevelt's deadly double of agricultural subsidies and state-sponsored crop cartels.

A second difficulty is as acute as the first. Who fills in the content of the right by telling us what counts as a decent price or a remunerative wage? In a world of major uncertainty, these questions have no fixed answer. But in a political setting, we devised schemes then to assure living wages to autoworkers, only to see Roosevelt's rickety structure comes crashing down on our heads. But do we learn humility from failure? Of course not, if we think that now is the time to implement a regime of positive rights to health care--oops, to health care insurance--funded by punitive and self-destructive taxes on the rich.

In short, there is no way to translate Roosevelt's--or Sunstein's vision--into sustainable social practices. But that's just what the First Bill of Rights can do with its bloodless protection of private property and freedom of contract, speech and religion. Now we can specify the correlative duties with precision: keep off the property of others, and don't meddle in their agreements. Follow these rules and you can stimulate investment and reward hard labor. By keeping our aspirations modest, we can keep our achievements high--which is why we don't want to undermine the first Bill of Rights by adopting the second.

When will people learn that there are only negative rights, not positive rights and the U.S. Constitution derives its power from the former, not the latter?